Baroness Royall of Blaisdon
My Lords, I shall speak also to Amendments 7 and 8 standing in my name and those of my noble friends Lord Rosser and Lord Tunnicliffe.
As all noble Lords will be aware, Chapter 1 of the Bill relates to the destruction, retention and use of fingerprints. For me, this is one of the most important parts of the Bill. As we agreed at Second Reading, there is a difficult balance to be struck between protecting people’s freedoms from police or government interference and protecting their freedom not to become victims of interference or violence from criminals or terrorists. These balances should be guided by evidence and by an assessment of risk and not by liberal or libertarian ideology. The changes proposed by the Government go too far in restricting the use of fingerprints and DNA profiles, and will make it harder for the police to solve and prevent serious crimes. It will also make their work more bureaucratic.
Amendment 1 would ensure that Chapter 1 took effect only after an evidence-based study had been completed analysing the risk of offending following an arrest which did not lead to a conviction of at least six years. The Minister may well tell me that such an evidence-based study would take too long. However, if such a study leads to saving lives, I for one strongly suggest that the time will be well spent. Why is this so important? It is important because the evidence base used by the Government to inform their decision to reduce the period of retention of DNA and fingerprint profiles is extremely weak. If we get this wrong, the implications for victims will be huge. There are countless examples of people who were arrested and not convicted but whose DNA retention was critical in catching them and convicting them of rape or murder at a later date. This is particularly important in relation to rape cases.
As the Minister will know, rape cases have not only a notoriously low conviction rate but a notoriously low charge rate. That is because the trauma for the victim is so great and because of problems with evidence. Many perpetrators of serious sexual crimes are not brought to justice for their first offence. In about 70 per cent of cases in which a rape suspect is arrested, there is no charge. According to Home Office papers, in cases where there is no charge, DNA will be kept in only very limited circumstances so that in many cases the DNA will be destroyed even though it might be critical in catching a repeat offender for a nasty and violent sexual offence.
The Minister will know that a considerable number of cases have been solved because of DNA. Kensley Larrier was arrested in 2002 for the possession of an offensive weapon. The case never reached court, but two years later he raped someone and was found because of a DNA match. Lee and Stephen Ainsby raped and kidnapped a 17 year-old girl in Barnsley. Lee Ainsby’s DNA was found years later in a case review. It had been taken because he had been arrested for being drunk and disorderly. Under the proposed system the DNA would not have been kept. Without that DNA those two men would still be free and justice for that young girl would not have been done. Abdul Azad was arrested for violent disorder in Birmingham in February 2005 but released without charge. In July 2005 he raped someone in Stafford and was identified only because the police had his DNA. The senior investigating officer for the case said:
“We would never have caught him had his DNA not already been on the database—he didn’t even live locally so we had no intelligence leads either”.
Case after case would have been much harder for the police to solve under the new rules. The Minister may well cite the S and Marper decision by the ECHR that blanket retention and storage of DNA and fingerprints contravenes Article 8 of ECHR. My Government responded with an extensive evidence-led consultation. However, the ECHR decision also recognised the importance of the retention of DNA in fingerprint profiles for individuals who have been arrested and/or charged but not convicted. It is the state’s primary duty to protect citizens’ fundamental rights to life, liberty and security under Articles 2 and 5. The ECHR objection was based on the blanket and indiscriminate approach to retention. Therefore, the argument is about minimising risk to the public of individuals committing an offence in the future and balancing that risk management against considerations of privacy. Evidence-led risk analysis was done two years ago by the Home Office which concluded that the effective length of the retention of DNA profiles was six years for both those arrested and/or charged for a serious offence, and for a minor offence. Conservatives were so convinced by this evidence that they voted in favour of its conclusions on a six-year retention limit contained in the Crime and Security Act 2010 when the noble Lord and his party were in opposition.
The Minister of State, Home Office (Lord Henley)
Was that not part of the wash-up process, and was it not an improvement on the existing regime when it could be kept indefinitely? We were bringing it down to six years.
Baroness Royall of Blaisdon
My Lords, as I explained, because we looked at the evidence we did indeed bring it down to six years. If the noble Lord looked at that evidence it would show that six years is the appropriate amount of time for DNA evidence to be kept.
Following the election, based on no new evidence, the Government announced that they would legislate to adopt the protections of the Scottish model. It was based on no evidence but was simply a judgment of the appropriate balance. A review of the Scottish system by Professor Fraser one year after it was introduced assessed the success only of the current system and did not compare whether a longer retention period would be beneficial or whether retention for three years was detrimental to solving serious crimes. The Government persist in seeking to apply the Scottish model in England and Wales when all the evidence and strong police advice from both sides of the border is that Scotland should instead apply the model of England and Wales. Scotland’s rape conviction rate is less than half that of England and Wales. The DNA database in Scotland is far less effective in solving crime than that in England and Wales. In 2009-10 a DNA profile loaded on to the DNA database in England and Wales had an 18 per cent higher chance of finding a match than was the case in Scotland. That is evidence that our system in England and Wales is far preferable and much more efficient and effective than the system in Scotland.
Baroness O'Neill of Bengarve
My Lords, before we go further with the fantasy of newborn babies being separated from their mothers to be swabbed, let us remember that all newborn babies have a pinprick test of their heels in order to get a blood sample for a Guthrie test to be sure that they do not suffer from a serious metabolic disorder—namely, PKU—and that these samples are retained. So a database, in that sense, exists. We should discuss the uses of databases rather than what exists or how samples are taken.
The Minister of State, Home Office (Lord Henley)
My Lords, I start by picking up on the point made by my noble friend Lady Hamwee about Amendments 1, 7 and 8 not being consequential. I do not know what are the ultimate intentions of the noble Baroness, Lady Royall, but I agree with my noble friend that Amendments 7 and 8 are not consequential on Amendment 1. Certainly if the noble Baroness was minded to divide the House on Amendment 1, I would not accept the consequences of the House’s decision as being binding on Amendments 7 and 8. However, I shall leave that to the noble Baroness when she gets to them.
As the noble Baroness, Lady Royall, made clear, Amendment 1 would delay the implementation of these provisions by several months. I remind the House that the provisions in Part 1, Chapter 1 of the Bill represent the response of the Government to the European Court of Human Rights judgment in the S and Marper case, to which the noble Baroness referred, which is already three years old. If the previous Government had implemented compliance legislation when they had the chance in 2009-10, we would not now have more than 1 million innocent people recorded on the DNA and fingerprint databases and we would not have had to legislate again on this subject in this Bill.
The previous Government’s proposals, to which the noble Baroness referred and which she obviously still supports, received at that time virtually no support at all beyond her own Front Bench. She has obviously since then dragged up a bit more support from her Back Benches. Our proposals, which very much adopt the Scottish model, have been welcomed by a wide variety of organisations such as Liberty, Justice, the Law Society, the Criminal Bar Association and GeneWatch. They all gave evidence to the Public Bill Committee in another place and welcomed the Government’s general approach in this area. The Scottish model has also found favour with the Joint Committee on Human Rights and with the Constitution Committee, which have both referred to it.
The noble Baroness referred to evidence from the 2009 analysis, which was based on only three years of evidence, as I understand it, extrapolated to a point where it was essentially of, it could be argued, no real value. I refer the noble Baroness to our analysis, which was published in September and used five years of evidence, looking crucially at the likelihood of conviction. Therefore, further analysis is unnecessary.
However, I can tell my noble friend Lady Hamwee that there will be a post-implementation review, as there always is, and if we failed to include something in our impact assessment again I can only say that Homer nodded on this occasion and that we will make sure that that does not happen in future. I believe that further analysis is unnecessary and our proposals to retain unconvicted persons’ DNA for only three years are correct, and then only in respect of serious offences.
The analysis has been looked at by many independent experts, who have considered it closely. For example, as my honourable friend the Minister for Crime and Security, James Brokenshire, said in Committee in the other place,
“the Information Commissioner states that he ‘does not consider that the evidence presented supports a general period of anything like six years’”.—[Official Report, Commons, Protection of Freedoms Bill Committee, 29/3/2011; col. 212.]
We have consistently supported the adoption of the protections of the Scottish model, and that was a central plank of our programme for government announced last May. We believe that our proposals represent an appropriate balance—and I was very grateful to the noble Lord, Lord Dear, for using the word balance—between the rights of those who have not been convicted by a court and the need to protect the public in some of the most difficult cases.
If the noble Baroness would like a little support from her own Back Benches, I can also refer her to the widely respected independent website Straight Statistics, whose board of directors is chaired by her noble friend Lord Lipsey. It has examined the research and reached the conclusion that:
“Despite the limitations of the analysis, acknowledged by its authors, it does suggest that the retention periods allowed under the 2001 and 2003 Acts were unduly long, as were those proposed in the 2010 Bill. The present bill, which is broadly similar to the law in Scotland, gets the balance more nearly right”.
The noble Baroness seemed to imply that we offered full support to the 2010 Bill. Again, I remind her, as I did in my intervention, that that Bill went through in the wash-up, very rapidly. Obviously, we offered it support in that six years was considered an improvement on the situation in the past, but we have not yet brought those provisions into effect and we have no intention of doing so. We think it better to bring forward these proposals, which are more likely to comply with the European Court of Human Rights judgment.
Again, I refer the noble Baroness to comments made by the then Policing Minister, when the noble Baroness’s party was in government, who said to the Public Bill Committee on the Crime and Security Bill that,
“we have obviously considered the judgment”—
that is, the judgment of the European Court of Human Rights—
“and how far we can push the boundary of the judgment in relation to our wish to have protection for the public”.—[Official Report, Commons, Crime and Security Bill Committee, 26/1/2010; col. 71.]
In our judgment, we should be seeking a balance, rather than riding roughshod over the rights of the million or more innocent people whose DNA profile is on the database despite them never having been convicted of any crime.
I turn to Amendments 7 and 8, which deal with the period for which we seek to retain the DNA and fingerprints of innocent people, which was discussed at some length in another place. These amendments would replace the Government’s provisions, which meet our coalition commitment to adopt the protections of the Scottish model, with the core of the last Government’s Crime and Security Act, which was rushed through in the run-up to the election. The party opposite persists in its approach to keep the DNA and fingerprints of innocent people for many years, no matter what those people have been accused of and no matter how little evidence was ever uncovered.
The noble Baroness referred to some 23,000 offenders. I was never quite sure where they had come from and whether they were alleged rapists, alleged something else or just people who had been arrested. Similarly, at the Labour Party conference in September, the shadow Home Secretary said that this Government will,
“take 17,000 suspected rapists off”
the DNA database, which,
“will make it even harder to bring rapists to justice”.
Of course, we all believe that increasing the conviction rate for rape and other serious offences is important. But are those on the Front Bench really saying that, in order to increase that conviction rate, we need to keep the details of thousands of innocent people on the DNA database because some of them in the future may go on to commit serious crimes?
I say to the noble Baroness that the conclusions of the report from the noble Baroness, Lady Stern, last year are far more important. She looked at the handling of rape by the police and by criminal justice and made some 23 recommendations in that area. While her terms of reference did not include the criminal law, her report recommended reassessing the essential elements of investigating rape cases, supporting victims to improve the handling of investigations and improving victim support, which would build stronger cases. Her recommendations on that occasion included ensuring that all police officers adopt ACPO’s Guidance on Investigating and Prosecuting Rape and adopting the protocol between the Crown Prosecution Service, the police and local authorities on exchange of information. I say to the Committee that these issues are more likely to be of assistance in increasing the conviction rate for rape than keeping 1 million—or whatever number we think it is—innocent people’s DNA on the national database.
In any event, the contention that every individual suspected of rape will instantly come off the database is just not true. Those charged with a qualifying offence, including rape, will have their DNA held for three years, and the police will be able to apply to the courts to extend that by a further two years. Those arrested for but not charged with a qualifying offence where the victim is vulnerable will also have their DNA held for three years, subject to the approval of the new independent commissioner. We have consistently taken the view, both during the passage of the Crime and Security Act and in advancing our proposals in this Bill, that the correct approach is to ensure that those convicted in the past of serious offences have their DNA added to the database, while those arrested for, but not convicted of, more minor offences should not have their biometrics held beyond the end of the investigation.
Lord Campbell-Savours
I wonder if the noble Lord would answer a question that was asked of me, and which came up in discussion when we were arguing about this the other evening. What is the difference between holding personal information in the form of a photograph—a simple photograph, such as a passport photograph—in a national database, as against holding DNA?
Lord Henley
I am trying to remember who it was, but I think the noble Lord, Lord Macdonald, made the point that he found somewhat scary the idea that we should have a national database with everyone's DNA on it, which was being promoted by the noble Lord and others of his colleagues. I feel exactly the same as my noble friend and I hope that that is a suitable response to the noble Lord. As I said, the idea that you could hold all that information in the form of DNA is very different from holding photographs. The noble Lord is speaking from a sedentary position but, if I could continue to try to answer him, that is a great distinction from keeping a photograph. I find the idea scary; obviously, the noble Lord does not.
Lord Soley
If I might intervene, my noble friend is right. The database is holding our photographs from driving licences and passports. The noble Lord’s blood group, and mine, will be on the database too. It will virtually be a national one for the National Health Service. What we do with the data and how we control their use is what matters, but I ask the noble Lord to remember that he is talking about something here that may well prevent many people being killed or raped, or suffering serious abuse. There is not enough thinking here going on about the victims and potential victims.
Lord Henley
As I said, my Lords, there is a balance. What the noble Lord is advocating could also lead to a great many miscarriages of justice, as the noble Earl, Lord Erroll, pointed out. I appreciate that noble Lords opposite would like to bring in identity cards and a national database of the DNA of every person in the country. We do not go down that route; we feel that there should be an appropriate balance between what is kept and what is not. That is why I would reject the amendments.
Baroness O'Neill of Bengarve
I would like to return to the question asked by my noble friend Lord Campbell-Savours, which is a serious one. The information that is retained from a genetic profile for the purposes of the forensic database is not revealing information, such as susceptibility to disease or other genetic factors. It is a selection of the DNA evidence that used to be referred to as “junk DNA”, which is not known to code for any personally sensitive feature of persons. In that respect it is what in other aspects of privacy legislation is called an identifier. That suggests that in some ways it is less personal than a photograph of someone’s face.
Lord Henley
Sorry, but I do not accept that. I refer the noble Baroness to the comments made by the noble Lord, Lord Dear, that we are in the early days of knowing what DNA can and might achieve in the future. We are offering a very large amount of information to be stored in that DNA. I find that idea scary. Obviously some noble Lords, such as the noble Lord, Lord Campbell-Savours, do not; indeed, they positively welcome it. On this, there will have to be a philosophical divide between the noble Lord and myself.
For the reasons that I have given, I would certainly not support the amendment and I hope that the noble Baroness, Lady Royall, will feel able to withdraw it because I do not think it would command the support of the House.
Baroness Royall of Blaisdon
My Lords, I am grateful to the Minister for his response and to all noble Lords who have participated in this short but excellent debate. I do not really understand what the Minister is saying about the wash-up. He seems to imply that if a Bill is agreed to in the wash-up, it does not have as much authority as other Bills.
Lord Henley
My Lords, I was not saying that at all, though sometimes Bills are rushed through without quite the same scrutiny that they normally deserve. The noble Baroness was trying to imply that that Act had the full support of the Official Opposition. My point was that, yes, we signed up to it because it was an improvement on what was there before, but we still felt that it did not go far enough in that it left the term at six years. We are proposing something different: three years, with the possible extension of another two years.
Baroness Hamwee
My Lords, I shall speak also to Amendment 3. These are among a number of probing amendments that I tabled following receipt of a briefing from the Information Commissioner, which I am aware has been sent quite widely to your Lordships. Therefore, I hope I do not need to spend too long on any of the individual items. It seems that I need not consider with too much suspicion or cynicism whether the Information Commissioner might have got hold of the wrong end of the stick. I am very happy to rely on a briefing from him.
Amendments 2 and 3 would add references to biographical information relating to the material dealt with by Clause 1. The commissioner is concerned that, although there is provision to delete fingerprints and DNA profiles, allied biographical information that is held on the police national computer or the police national database is not referred to. Perhaps the Minister can help me with the basis of these amendments. Is the PNC record also deleted when the DNA profile is removed? At present, records held on the PNC are readily accessible. The noble Lord, Lord Dear, may tell me that I am wrong, but it has been suggested that because that information is there access is frequently used to run a name check on individuals who come into contact with the police. Noble Lords will understand the inaccurate assumptions that may be made as a result of this.
The fifth principle of data protection states:
“Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes”.
It seems to me that we should be looking at biographical information alongside the technical information. I beg to move.
Lord Henley
As my noble friend has explained, these amendments were tabled following receipt of a letter from the Information Commissioner, which I think a large number of us have seen. They seek to amend Clause 1 by extending the scope of the provisions for deleting fingerprints and DNA of those arrested but not charged or subsequently not convicted to all police records held on that individual. For ease, I shall refer to these records as “arrest-only records”. In our view there is no need to extend the scope of the clause to cover arrest-only records. What is retained on police records should continue to be an operational matter for chief police officers to decide.
As your Lordships may be aware, the Association of Chief Police Officers has already issued guidance to forces in the light of the Supreme Court judgment earlier this year in the case of GC & C v the Commissioner of Police of the Metropolis. ACPO issued a letter on 16 June to chief officers which said that,
“if the biometric data is deleted or destroyed, then there is no need—and therefore no justification—for the retention of the arrest record on the Police National Computer. Therefore, if the biometric data is to be deleted or destroyed, then so must be the arrest record on the PNC”.
Therefore, in effect, ACPO has already put a deletion process into effect for arrest-only records held on the PNC. To go further and then delete all records from every other police database, whether national or local, would, in our view, be a step too far. On balance we think that the approach taken in the ACPO letter is the correct and appropriate one. It creates the correct balance—I apologise again for using the word “balance”—between civil liberties and public protection. It also creates consistency between the retention of arrest-only records on the PNC and the treatment of fingerprints and DNA profiles in the Bill.
We have to appreciate that, once the details are removed from the PNC, front-line operational officers will not be able to tell whether an individual has previously been arrested and not subsequently cautioned or convicted. They will not have access at that point to the police national database nor will they necessarily be able to check local records. That, we believe, provides the necessary safeguards for individuals. The fact that a person was arrested or went to trial is a matter of fact and keeping those details on databases that are not readily available to all police officers means that that information will not be visible to the officer making the stop.
Going further and deleting all arrest-only records from all databases means that the police would have no way of knowing that an individual had come to their attention before. It would also mean that the enhanced criminal record checks could not show details of those arrests where they are relevant to a particular application. Such an approach would significantly weaken the public protection afforded by the criminal record regime. I hesitate to refer to it, but it could result in another Huntley-type case where relevant information about previous suspicious behaviour is not disclosed. I accept that in that particular case the records were not effective in preventing what subsequently happened, but that does not alter the fact that the records were there to show a history of arrest linked to a certain type of offending.
I appreciate that at this stage they are probing amendments, but their effect would be that all police databases would be reduced simply to holding details of cautions and convictions. All other intelligence would be removed. In our view, that would hamper the ability of the police properly to protect the public, and for that reason I cannot support the amendments. I therefore hope that my noble friend will be prepared to withdraw the amendment.
The Earl of Erroll
I am quite intrigued by this. The police have a policy in some cases of arrest first and ask questions later, particularly when householders are defending their property, and so on. These people will therefore effectively be regarded in perpetuity—or at least for as long as they live—as having behaved undesirably, even though they have never been in front of a judge or the courts and we should therefore deem them to be innocent. I am worried by the attitude that that should stay on file. I fully realise that we must watch out for cases such as that of Huntley, but they are surely dealt with by the other provisions, whereby you are allowed to retain the records in certain circumstances.
Lord Henley
My Lords, again I repeat the word “balance”. It is a question of balance as to what is appropriate. Again I stress that it is a matter of fact, referring to the noble Earl’s example, that that person has been arrested. He might not have been appropriately arrested and the noble Earl might feel that that should not have happened. However, the simple fact is that he was arrested and there are occasions when keeping that information may be of some use.
Baroness Hamwee
My Lords, like the noble Earl, I blinked at the words “a step too far” and I appreciate that the Minister went on to try to explain that. It would be only right to read his explanation in order to seek to understand it. However, I have more questions now than when I introduced these amendments.
I should also say that I have a little difficulty in relying on ACPO guidance, if I have correctly understood its status. There is no question about whether it is proper. However, it is one thing for a statute to allow something and for ACPO then to withdraw a little from it, but that is not as good as the statute being clear. I was also not sure how that lay with the Minister’s comment about this being an operational matter for the police. Having added to the list of questions in my head, I will of course withdraw the amendment. This issue may be something that I can discuss with the Minister between this stage and the next. A lot of complications and procedures are not evident in the Bill, which of course deals with just one aspect of the way that the police organise themselves. I beg leave to withdraw the amendment.
Baroness Hamwee
My Lords, I shall speak also to Amendment 22. These amendments deal with two provisions about speculative searches. Clause 1, on the destruction of fingerprints and the DNA profile, and Clause 22, on the destruction of samples, state that they do not prevent a speculative search,
“within such time as may reasonably be required for the search if the responsible chief officer of police considers the search to be desirable”.
My amendments relate to the term “desirable” and propose wording taken from Clause 15, whereby, instead of when it is “desirable”, fingerprints and DNA can be kept when,
“necessary for the prevention or detection of crime, or the investigation of an offence”.
Without wanting unduly to hinder the police's discretion, it seems to me that those two provisions are very wide. The Explanatory Notes states that the material could be retained for a “short period”. I do not read that into the two clauses. Perhaps the Minister can help me with that and about what limitations there might be on this apparently wide provision. I beg to move.
Lord Henley
My Lords, I have some sympathy with what I think the noble Baroness is trying to get at with the amendments, certainly from my understanding of the letter from the Information Commissioner, but we believe that her amendments would both seriously undermine the effectiveness of the national DNA database and significantly increase the cost of the administration of the system at a time when police budgets are under significant pressure.
In terms of effectiveness, we are advised by the police service that the key point in the taking and retention cycle for DNA and fingerprints is the carrying out of a speculative search immediately following arrest and sampling. For those of your Lordships who are not familiar with this process, it involves the comparison of the newly-taken DNA and fingerprints with material from previous crime scenes and with those whose biometrics are retained following conviction or, in the limited circumstances that we will be discussing shortly, from those suspected but not convicted of serious offences.
It is that speculative searching process which results in the identification of those who have already committed crimes, which I would hope that all of your Lordships would agree is a vital public protection measure. To give an example, a speculative search was undertaken on the DNA profile of Mark Dixie in June 2006, when he was arrested following a fight at the pub where he worked. He was not charged with that offence, but his DNA was matched to biological material left at the scene of the murder of Sally Anne Bowman the previous September. As a result, he was subsequently convicted and sentenced to life imprisonment.
The Government consider that carrying out a speculative search in each case where DNA and fingerprints have been taken on arrest is vital to the effectiveness of the database in identifying such crimes and far outweighs any additional intrusion in Article 8 terms. Indeed, in its recent report on the Bill, the Joint Committee on Human Rights commented at paragraph 45 of its report that,
“an additional final search before destruction is unlikely to pose such an additional interference to create a separate violation of Article 8 … which could not be justified”.
I appreciate that my noble friend does not want to stop such searches, merely to require the circumstances to be considered before a search is carried out. As I said at the beginning of my remarks, it would add to the delay and cost of each arrest for such consideration to be given. There were nearly 1.4 million arrests for recordable offences in 2009-10, a figure I gave to the House earlier today at Question Time. Thus, the additional time required for police officers to consider whether searches were necessary would run to many thousands of hours and could well result in many thousands of additional hours spent in detention by those being investigated.
I can assure my noble friend that we considered this issue carefully in bringing forward our proposals and we consider that carrying out a speculative search in every case is an appropriate use of the DNA and fingerprints taken on arrest. For those reasons, I cannot support Amendments 4 and 22 and I therefore hope that my noble friend will be prepared to withdraw the amendment.
Baroness Hamwee
My Lords, indeed I shall do so. When the Minister said “cost”, I wrote the word “balance” because, as he said, it has come up in every line of every clause and on every page. I think I am left with understanding that the short period to which the Explanatory Notes refer—I appreciate that they are not binding—is the period for which the material is retained. The Minister is nodding at that. Having clarified that, I beg leave to withdraw the amendment.
Lord Henley
My Lords, it seems that with this group of amendments the noble Lord first wishes to, in effect, remove the independent biometrics commissioner and then, as we discussed earlier, extend the period of DNA retention automatically to six years for virtually all offences. Amendments 6, 9 and 10 would leave the decision entirely in the hands of the police. Obviously I can see the attraction of effectively automating the process to reduce the administrative burden placed on the police in those cases. However, the Government consider this to be completely outweighed by the additional protection given to the arrested person by the safeguard of the commissioner’s consideration. We considered this issue very carefully in drawing up our proposals.
We accept that it is appropriate in limited circumstances to retain material where a person has been arrested for a qualifying offence but not subsequently charged, and those circumstances are set out in new Section 63G(2) and (3) of the Police and Criminal Evidence Act 1984, which would be inserted by Clause 3 of this Bill. However, given that in such cases the charging standard has not been met, we believe that further safeguards are necessary, and the independent scrutiny of the commissioner provides that safeguard.
In support of his arguments, the noble Lord produced the case of Kensley Larrier, whose DNA, he claimed, was vital in getting him convicted of rape. My advice is that the DNA was not the key to his subsequent conviction for rape and on that occasion it was the complainant who took the police to the block of flats where he lived and described him in such detail that he could easily be identified. No doubt the noble Lord will say that that is just one example and will produce others, but it was not a very good example and it does not particularly support his case. Again, it is a question of finding the right balance.
I also remind your Lordships that the evidential charging standard is that there is a “realistic prospect of conviction”, which is defined in the Code for Crown Prosecutors as,
“an objective, impartial and reasonable jury or bench of magistrates or judge hearing a case alone, properly directed and acting in accordance with the law”,
that,
“is more likely than not to convict the defendant of the charge alleged”.
Where the charging standard has not been met but the police believe there are valid reasons to retain the material, we believe that the process of applying to the commissioner, which we are determined to make as straightforward, simple and unbureaucratic as possible, provides an important safeguard.
As I have indicated, we believe that the police should be able to retain biometric material in limited circumstances. In this respect, therefore, the Bill goes beyond the Scottish system in allowing for the retention of material from persons who have been arrested but not charged, which is why we believe that there should be the safeguard that we have set out to form the biometric commissioner. As my right honourable friend the Home Secretary said at Second Reading in another place:
“We must protect the most vulnerable in society, so when the victim of the alleged offence is under 18, vulnerable or in a close personal relationship with the arrested person … the police will apply to the commissioner for retention. I believe that these rules give the police the tools they need without putting the DNA of a large number of innocent people on the database”.—[Official Report, Commons, 1/3/11; col. 207.]
For that reason, I cannot offer a crumb of comfort to the noble Lord in his Amendments 6, 9 and 10.
Amendment 13 would provide for a six-year retention period in the case of a person arrested for or charged with, but not convicted of, a minor offence. Clause 4 delivers another of the key protections of the Scottish model. Read with Clause 1 it provides for the destruction of the DNA profiles and fingerprints of anyone who has been arrested for or charged with a recordable offence that is not a qualifying offence but who is not subsequently convicted. The Government’s view is that not retaining that material taken from those arrested for or charged with a minor offence but not subsequently convicted strikes the right balance between public protection and individual freedoms.
The European Court of Human Rights was clear on this point. A key passage of the Marper judgment, the case to which we referred earlier and which this Bill implements, stated that it was struck by the indiscriminate nature of the power of retention then in force, and highlighted the fact that,
“material may be retained irrespective of the gravity of the offence with which the individual was originally suspected”.
Obviously, the noble Lord, Lord Rosser, takes a contrary view. He says that we should retain as much of this DNA material as possible for as long as possible. Some of his noble friends, such as the noble Lords, Lord Campbell-Savours and Lord Soley, want ultimately to have everyone’s DNA on the register. The party opposite says that retaining someone’s DNA profile on a database is not much of an intrusion. It compared it to keeping a photograph and said that it is not much of an intrusion compared with the risk of even one rape or serious assault left unsolved. I do not accept that.
We have argued consistently, both before the election and since, that the previous Government’s models went too far. We think that the Scottish model strikes a far better balance between the competing interests, as the Joint Committee concluded when it examined the previous Government’s proposals. As I made clear in the debate on the earlier amendment, I believe that a great many others support us on this issue.
As for the research conducted by the Jill Dando Institute of Crime Science, the noble Lord should remember that its director later noted that it was incomplete and based on data to which it was not given direct access. In September 2009, Gloria Laycock, director at the institute, said of the research study:
“That was probably a mistake with hindsight. We should have just said ‘you might as well just stick your finger in the air and think of a number’”.
I took that from a briefing provided by Liberty, for which I am most grateful. The noble Lord also might have looked at that and might have found it of some use in his arguments. We are trying to find the right balance and we believe that we have. I hope therefore that the noble Lord will feel able to withdraw his amendment.
Lord Rosser
I thank the Minister for his response. It throws into sharp contrast the fundamental difference of view between this side and the Government over the length of time that DNA samples should be retained, and the types of cases for which they should be retained. I do not think the Minister has sought to argue that retaining them for the longer period of time, which is what we are advocating, would not lead to more people who have committed serious offences being apprehended. He gets around replying to that argument simply by talking of a so-called balance. On this side we have made it clear that we are in favour of a balance that seeks to apprehend those who have committed serious offences and one that reduces the number of people who are likely to be the victims of serious crime.
However, there is obviously a fundamental difference on this view, which was expressed by the Minister during our discussion on the previous amendment. I will withdraw this amendment for the moment, but we will consider whether to bring back a similar amendment on Report.
Baroness Hamwee
My Lords, I shall speak also to Amendments 15, 16 and 17. These are identical amendments to Clauses 4, 5, 6 and 7, which permit the continued retention of material in specified circumstances indefinitely, irrespective—at any rate in statutory terms—of any ongoing necessity for crime prevention and detection purposes.
I have referred before to the fifth principle of data protection, which I have quoted, and my amendments would permit retention for as long as is necessary for the prevention and detection of crime, investigation of an offence or the conduct of a prosecution. That is the wording used in Clause 16, which I am not seeking to amend, and which the Information Commissioner has told us more closely accords with the requirements of the Data Protection Act.
I may be told that there is too much bureaucracy involved in this but it would be appropriate for the Committee to hear an explanation from the Minister as to why indefinite retention is allowed in the context of the generally wholly welcomed provisions limiting retention. I beg to move.
Lord Henley
My Lords, I hope to deal with this issue relatively briefly. My noble friend has got it right when she refers to additional bureaucracy. If we move from unconditional indefinite retention to a necessity test, as is suggested in her amendments, this would require the police to keep under continual review some 4.5 million or so convicted individuals whose DNA is retained on the national DNA database, as well as the 3 million or more whose fingerprints are held without a DNA profile. That would be a huge administrative exercise which the police would not be happy to take on.
My noble friend made a point about why we are retaining it indefinitely for certain people and not for others. Recently published research notes that, at least on average, conviction rates for individuals with no prior convictions will be lower than for individuals who are proven offenders. That is why we believe we are right in retaining material from the unconvicted only in certain specific circumstances, as we discussed earlier, while retaining the material from all those with convictions for recordable offences. Such retention is preventive, not punitive. It is done in respect of a group of individuals who pose a considerably higher risk of future offending—significantly higher than that of the general population—because of their past proven criminality.
I hope that with those assurances—that it is a group more likely to offend in future and that it would be a massive bureaucratic exercise for the police to undertake—my noble friend will accept that her amendments are unnecessary.
Baroness Hamwee
I am not sure about their not being necessary, but I can see they may be undesirable. I shall not comment on police happiness.
Lord Henley
It is not purely police happiness—it is also police cost. If my noble friend’s amendment were accepted, looking at 4.5 million entries on an annual basis would divert an awful lot of police man hours away from the job.
Baroness Hamwee
My Lords, I am being inappropriately flippant in a serious context. Perhaps I had better just beg leave to withdraw the amendment.
The Earl of Erroll
My Lords, this is quite an important principle. I notice that when it comes to cautions and reprimands, particularly reprimands, the police certainly do not warn youngsters of the full implications of accepting one. They do not realise that it is a plea of guilt to a criminal offence, which will stay on their record for certain purposes throughout their life. In fact, I have discovered that even some solicitors in the county courts do not realise that. Therefore, it is important that the police have a duty to advise people properly of the full implications of these things, partly so that the police realise them as well. I support this amendment.
Lord Henley
My Lords, I start with the point made by the noble Baroness, Lady Royall, about her desire to give DNA voluntarily. I take note of that. There is nothing to stop her. I was going to suggest that a special database could be set up, possibly named after her noble friend, the noble Lord, Lord Campbell-Savours, who seemed so keen on the idea. However, we will now have to call it the Baroness Royall database, and it can collect the DNA of all those members of the party opposite who want to hand it over voluntarily, and all those others who want to deal with the problem of stigma that the noble Lord, Lord Campbell-Savours, talked about earlier.
There is, however, a much more serious point here: the informed consent of individuals when they come to give their DNA. They might be doing so as part of some operation that the police are mounting where they deliberately want to exclude certain people from their investigations and, therefore, want to take fingerprints or DNA. It is right that we get the appropriate consent set out. That is why comprehensive guidance on the operation of these powers is set out in PACE Code of Practice D, which was revised in March this year to take account of the 2010 Act. It will need to be revised again once the Bill receives Royal Assent. Code D sets out the information that needs to be provided to a person before their fingerprints and/or DNA are taken. Annexe F of the code specifically sets out the requirements to be followed. Note for Guidance F1—to confuse noble Lords even further—underlines the importance of true informed consent. I shall read an extract from it to give assurance that appropriate guidance is offered. It will be revised in the appropriate manner after the passage of the Bill. It states:
“Fingerprints, footwear impressions and samples given voluntarily for the purposes of elimination play an important part in many police investigations. It is, therefore, important to make sure innocent volunteers are not deterred from participating and their consent to their fingerprints, footwear impressions and DNA being used for the purposes of a specific investigation is fully informed and voluntary. If the police or volunteer seek to have the fingerprints, footwear impressions or samples retained for use after the specific investigation ends, it is important the volunteer’s consent to this is also fully informed and voluntary”.
It is very important that the people covered by the new details in Clause 10, particularly new subsection (3), which refers to people who have,
“previously been convicted of a recordable offence”,
are properly informed, under the code of practice, of just what they are consenting to and for how long their DNA will be retained. Therefore, I think my noble friend will accept that her amendment is not necessary. We will make sure that the code of practice is revised in the appropriate manner and that will be done at an appropriate moment after the passage of the Bill. I hope therefore that she will feel able to withdraw her amendment.
Baroness Hamwee
My Lords, the destruction of material by way of batches, and what the material was which was to be destroyed, was dealt with in Committee in the Commons. Reading the debate of 5 April after I had received the Information Commissioner’s briefing, it seemed to me that the discussion slightly petered out. My Amendment 21, which would provide for copies to be processed individually, is tabled to enable the Minister to give assurances—no doubt he will seek to do so—that the deletion of all DNA profile information will be the norm and that retention will occur only in exceptional circumstances. I understand from the debate in the Commons that there are some practical issues around how destruction is dealt with. Perhaps the Minister can reassure the Committee in regard to the subject of the amendment. I beg to move.
Lord Henley
My Lords, my noble friend is again right when she says that there are some technical problems with this issue. I shall say a little about that in a moment once I have set out the position. It might help if I set out a little of the background in this area. Because of the way in which DNA samples have historically been processed in batches—typically of 96, I am told—it is impractical to delete all processing records held within a forensic science laboratory, as batches will inevitably contain a mixture of profiles from convicted and unconvicted individuals, and records must be retained for evidential purposes of convicted individuals, not least in the event of a subsequent appeal or referral to the Court of Appeal by the Criminal Cases Review Commission.
Action is already under way, led by the National DNA Database Strategy Board and the Protection of Freedoms Bill Implementation Project Board, chaired by Chief Constable Chris Sims on behalf of ACPO, to address the potential for relinking records by removing any link between police barcode numbers and laboratory processing records. One forensic science provider already does this. The strategy board is already working with the laboratories to make this change by the middle of next year. This will break the link between the police and laboratory records and prevent any illicit relinking of names to profiles. The revised procedures will apply to both new and existing samples. From mid-2012, it will be impossible to carry out this relinking. Once the forensic science provider is informed that an individual’s DNA profile has been removed from the database, the link between the police barcode and the laboratory reference will be broken and restoration will not be possible.
None the less, we understand the concerns that have been expressed in this area, and my honourable friend the Minister for Crime and Security recently met representatives of the company which supplies the DNA profiling machines which produce these interim records. They are working on a proposal to enable the deletion of these records rather than merely breaking the links as I have described. If the cost of doing so is not wholly excessive, we will require the destruction of these records. I hope that my noble friend will bear with me for a while until those discussions have been completed and the company can tell us what will be physically possible and what will not be possible. In the mean time, I hope that she will be satisfied by the fact that we feel that we can break the link between the police barcode and the laboratory reference. Once we have broken that link, it will not be restored. Therefore, Amendment 21 will not be necessary.
Baroness Hamwee
My Lords, that is very helpful information and updating. I suppose the obvious question is whether the Minister is asking me to bear with him for a period which may be longer than that between Committee and Report stage. I do not know whether he has been informed of how long the investigations may take.
Lord Henley
I certainly cannot guarantee to do anything between Committee and Report and I doubt even necessarily between Committee and Third Reading. We will do what we can. If I can bring any further intelligence to the House in the Bill’s later stages, I will certainly do so. However, it would be wrong for me to give any assurances at this stage. The important thing to say is that we can at least break the link between the police barcode and the laboratory. Whether we can do something better will depend on what the company manufacturing these machines manages to do.
Baroness Berridge
My Lords, I would be grateful if my noble friend the Minister could confirm that the anonymising of these profiles in the batches of innocent people’s material is compatible with our duties as outlined by the European Court in relation to the retention of innocent people’s material. When speaking to the people in charge of this procedure in various companies, will he bear in mind the fact that the Government might in the future legislate to prevent innocent people’s DNA being deleted from the database? If that should occur, what is the possibility of relinking people’s profiles with the police national computer? Is there any way in which their names, addresses and identifying details on the national computer can be got rid of to prevent that eventuality ever happening so that the samples remain completely anonymous and can never be reconnected to a name and address?
Lord Henley
I will have to take advice on this but my understanding is—I will write to my noble friend if I am wrong about this—that once we have broken the link between the police barcode and the samples, it is broken and cannot be repaired. However, if I am wrong on that, I will let my noble friend know. As regards whether we can get improvements made to the machines so that we can properly delete these things, that will have to wait on the discussions to which I referred earlier.
Lord Goldsmith
Perhaps I may make some observations on the amendment that are very much in the nature of trying to understand what it is intended to do, and I am sorry if I have misunderstood it.
As I read the Bill, there are two circumstances in which material that has been taken in relation to a person who has been detained under Schedule 7 may be retained. In one case, it is retained indefinitely in circumstances where that person has previously been convicted of a recordable offence, other than a single exempt conviction, or is so convicted before the end of a further period. Therefore, if a person has been convicted previously of a recordable offence, DNA or material taken under Schedule 7 may be retained indefinitely. There is a second circumstance in which the material can be retained for six months, which is where the person has no previous convictions or only a single exempt conviction.
I regret that I do not understand at the moment what the noble Baroness’s amendment would do. It would add the words,
“and subsequently arrested for an offence directly related to the reasons for detention”.
For example, if this was the case as regards a person who had previously been convicted of a recordable offence, one would somehow have to wait to see whether that person was subsequently arrested—and I do not know within what period that would apply—for an offence that would also have to qualify as being directly related to the reasons for detention. Only in those circumstances could the material be retained. I do not understand how anyone will know at any point whether that person is going to be subsequently arrested. Nor do I understand why they should be,
“arrested for an offence directly related to the reasons for detention”.
I have to some extent demonstrated my colours in relation to DNA but, at least in the case of a person who has previously been convicted of a recordable offence, I see no reason at all why the material should not be retained. I do not see why one should add a condition whereby somehow you are going to be able to discover subsequently that a person would be arrested for an offence and, furthermore, that that offence is directly related to the reasons for the original detention—whatever, with respect, that means.
At the moment, I do not understand the amendment and, for those reasons, I could not support it.
Lord Henley
My Lords, I do not know whether I can bring light to the noble and learned Lord, Lord Goldsmith, but I will see what I can manage. I will speak to my noble friend’s amendments and, because they have been grouped together, in due course speak to the government amendments in my name—Amendments 24 to 37.
My noble friend helpfully set out her views on the provisions in Schedule 1 in respect of the retention of material taken as a result of a Schedule 7 examination. Schedule 7 to the Terrorism Act 2000 is a national security border power that enables examining officers to stop, search and question a person at a port or in a border area to determine whether they are someone who is or has been concerned in the commission, preparation or instigation of acts of terrorism, without reasonable suspicion that they are so concerned. Given that most major terrorist plots have involved individuals travelling across international borders to plan and prepare their attacks, it is only right that the police are given appropriate powers to examine persons, including through the taking and retention of biometric material—in this context, in order to identify and disrupt such individuals.
Imposing a requirement to arrest an individual for terrorism offences as a condition for retention and use of material taken under these powers, would fundamentally undermine their use as a means to identify those involved in terrorist activity and to gather intelligence. Such intelligence can provide vital contributions towards wider intelligence-based investigations in respect of national security. Terrorism investigations are, by their very nature, long and complex, and at the end of a Schedule 7 examination it may not be immediately apparent that an arrest is appropriate.
Attaching a requirement for arrest would furthermore offer no additional safeguards. The Bill already provides safeguards for material taken from a person detained under Schedule 7. There is a defined retention period of six months, which is considerably shorter than the three years’ retention period that applies where a person has been arrested for a terrorist offence under Section 41 of the 2000 Act. The new biometric commissioner will also have a general oversight role in respect of the retention and use of biometric material taken under Schedule 7.
I hope that that helps partially to explain matters to the noble and learned Lord and reassures my noble friend that the provisions in the Bill are transparent and will provide strong protection against unnecessary retention of material taken from individuals detained under Schedule 7 to the 2000 Act.
Turning now to the governance arrangements for the DNA databases, the subject of Amendment 41, I think it is important to note that all DNA material retained by the police will as a result of the Bill be subject to comprehensive regulation, irrespective of the databases on which it is held. Indeed, although the overwhelming majority of DNA information retained by the police will continue to be held on the National DNA Database, where this is not the case, such material will be subject to the requirements of the regimes set out in the Bill, and covered by all the relevant safeguards.
Regarding the counterterrorism database, only DNA profiles obtained by the police in relation to national security—including counterterrorism investigations—will be held on the database. It has already, in effect, been placed on a statutory footing by virtue of the Counter-Terrorism Act 2008, which provides for all material not otherwise subject to statutory restriction, and is already overseen by the National DNA Strategy Board in respect of compliance with agreed national standards and protocols.
The Forensic Science Regulator is also closely involved in ensuring that DNA analysis and validation meet acceptable standards, as he is with the National DNA Database. In addition, we should not forget the new biometrics commissioner’s general oversight function under Clause 20. If the commissioner had concerns about the governance arrangements, I am confident that he or she would not be reticent in bringing such concerns to the attention of the Home Secretary.
Perhaps I may briefly address the government amendments, starting with Amendments 24 to 28. These address three separate matters. First, Amendments 24 to 28 to Part 3 of Schedule 1 are intended to clarify the application and scope of the provisions for the retention and destruction of biometric material to which Section 18 of the Counter-Terrorism Act 2008 applies. Section 18 mostly covers biometric material acquired covertly and material supplied by overseas authorities.
The Government are clear that material obtained under Section 18 of the 2008 Act should be subject to a clear and robust regime for the destruction and retention of such material. As such, we have proposed limiting retention to three years—on the basis of a national security determination extendable for renewable two-year periods—after which it must be destroyed.
However, the proposed destruction requirements in Section 18 are not expressly limited to material obtained from known persons. We are concerned that this will lead to anonymous material and, in particular, material taken from crime scenes, having to be destroyed at the three-year point. Indeed, as currently drafted the Bill requires just that. This unintended consequence would result in the destruction of material before the police were able to identify the individual to whom it belonged, complete an investigation of an offence—potentially compromising prosecutions in the process—or make a case for its retention on national security grounds. For these reasons, the amendments are designed to prevent the automatic and premature destruction after three years of anonymous and unidentified crime scene material obtained by the police.
We do not consider that anonymous material or material taken from a crime scene—where it is also anonymous—should be subject to the same destruction requirements as material obtained from known individuals. Rather, it should still be possible for the police and other law enforcement authorities to retain such material indefinitely. However, we recognise that not all crime scene material will be anonymous in nature and as such want to make clear that where there is provision for indefinite retention of unidentified material, once identified, such material will be subject to the same retention and destruction requirements of material where the identity of its owner is known on acquisition.
Amendment 26 will exclude from Section 18 of the Counter-Terrorism Act material taken under the Terrorism Prevention and Investigation Measures Act 2011, as it will become shortly. This is consistent with the exclusion of other existing statutory regimes from the scope of Section 18 to avoid enacting overlapping and conflicting provisions. We consider that all these amendments enhance the provisions in Schedule 1 by making clear how they are intended to operate.
Amendment 29 would omit paragraphs 6(4) and 7 from Schedule 1 to the Bill. Those paragraphs, which contain provisions in respect of the retention and use of biometric material in Scotland for national security purposes have, in effect, been made redundant by the Criminal Justice and Licensing (Scotland) Act 2010 (Consequential Provisions and Modifications) Order 2011, which itself gave effect to the changes that those provisions would have made. Simply put, the provisions are no longer needed and can therefore be removed from the Bill. There are three consequential amendments to Clause 113 and Schedule 10 which we will need to come back to later in the passage of the Bill.
Finally, Amendments 30 to 37 to Parts 7 and 8 of Schedule 1 extend the list of purposes to which material taken under the Police and Criminal Evidence (Northern Ireland) Order 1989 and held pursuant to a national security determination may be used. They further ensure that the order-making powers conferred on the Secretary of State to amend the Police and Criminal Evidence (Northern Ireland) Order applies in respect of provisions regarding a transferred matter where it is ancillary to an excepted or reserved matter.
Amendments 30 to 33 provide that the purposes for which material retained pursuant to a national security determination which was taken under the Police and Criminal Evidence (Northern Ireland) Order may be used are the same as for the rest of the UK. That is, that such material can be used for the prevention and detection of crime, the investigation of an offence or for identification purposes, in addition to that for national security and terrorist investigations.
Amendments 34 to 37 are technical amendments. They amend the Secretary of State’s order-making powers so that the Secretary of State is able to make provision in respect of transferred matters where such provision is ancillary to excepted or reserved matters.
I apologise for taking so much time on those government amendments, but I hope that my noble friend will be content with the explanation I have given of her Amendments 41 and 23. I hope that she will feel able to withdraw her amendment, and I will move mine in their proper place.
Baroness Royall of Blaisdon
My Lords, forgive my intervening at this stage. I am grateful to the Minister for his response to the amendments tabled by the noble Baroness, Lady Doocey. From what I heard of his response, I think that I would agree with him that her amendments should not be pressed, but I imagine that they are probing amendments.
As I mentioned earlier this afternoon, I intend to bring forward amendments on Report relating both to a period during which evidence can be collected before the Government’s proposals were introduced and to the period for which DNA samples and fingerprints could be retained—for six years rather than three years. If my amendments are accepted, a consequential amendment will be required to subsection (6) proposed in government Amendment 28, but that is for a later stage. For the moment, I am content to accept the noble Lord’s amendments.
Lord Henley
The Earl of Erroll
Does a case collapse just because one bit of evidence is not quite right? I cannot believe that that one bit of evidence would be the only thing to bring about a conviction, in which case why on earth do we let people off? That seems quite dotty to me, as a lay man, unless the whole thing hinged on that one bit of evidence, in which case there could be some ambiguity about it.
Lord Henley
I suppose that a case could collapse just because one bit of evidence fell apart, although in the main there would be other bits of evidence. However, the noble Earl, Lord Erroll, is right to make that point.
My noble friend, in moving the amendment, is obviously concerned about the costs of the Bill to the police and what that might do in diverting resources away from front-line policing. That has also been a concern of mine, and it is why, for example, I resisted an amendment from my noble friend Lady Hamwee suggesting that we should be looking at all the entries on the database on an annual basis. That certainly would have had major cost implications.
The reasoning behind my noble friend’s amendment is to ask the commissioner to look at a number of issues, including the cost of implementing the Government’s proposals. I can see why she wants to do that—I understand that she is a member of the GLA—particularly in view of the costs for the Metropolitan Police Authority, which, by virtue of its size, will have the largest single bill for implementing the proposals set out in this chapter.
I have to say to my noble friend that the Government have been working very closely with ACPO, the National Policing Improvement Agency and private sector forensic science providers to keep the cost of our proposals as low as possible. We published a very full impact assessment of these proposals in February this year, setting out a transition cost of just over £10 million. I appreciate that my noble friend Lady Hamwee had some criticisms of one part of the impact assessment, and I said that even Homer nods from time to time. I contrast that figure of £10 million with the previous Government’s impact assessment for, say, the provisions in the Crime and Security Act, which had an estimated transitional cost of over £50 million. Therefore, I think that the Committee will see that we have done much work in this area.
We are not convinced that the proposed post-implementation review by the new commissioner would add significantly to our understanding of this issue, and it would impose an additional bureaucratic burden not only on him but on hard-pressed police forces. I also say to my noble friend that I believe the commissioner’s first six months in office are going to be very busy indeed in terms of examining a number of applications for extended retention and setting out guidance under Clause 22 of the Bill, without giving the new officeholder the additional task of a financial review.
That said, Clause 20(6) confers on the commissioner a general function of keeping under review the retention and use of biometric material, so it would be within his remit to examine the impact of the retention periods provided for in the Bill without the constraints imposed by the amendment. I certainly reassure my noble friend that we take very seriously the issues highlighted by her amendment but we do not think that it is necessary.
My noble friend also touched on some of the issues relating to the batch processing of DNA samples, with which I think we dealt on an earlier amendment. Again, I reassure her that we think it will be physically impossible to relink anything held on a police file, including the original DNA sample barcode, with any information stored in a forensic laboratory. However, as I said, more work needs to be done in that area, and we will certainly do that in due course. I hope to be able to let the House know more about that at a later stage if at all possible.
Therefore, I hope that my noble friend will feel that there are sufficient protections in the Bill and that she will feel able to withdraw her amendment.
Baroness Hamwee
My Lords, before my noble friend responds, perhaps I may say to the Minister that he really should not take every question from me as being a criticism. Questions are sometimes completely straight questions.
Lord Henley
Of course questions from my noble friend are not criticisms. I hope that I answer them as well as I am able to do.
Baroness Doocey
My Lords, I thank the Minister for his response, which goes some way to reassure me but I still have major concerns, particularly about the financial implications on the Met. I would like to address these and the other issues that I raised perhaps outside the Chamber. At this stage, I am happy to withdraw the amendment.
Lord Campbell-Savours
Before we agree this I wonder whether the Minister can give us advice on the costs of the collection of DNA and its retention. Will the Minister tell us the costs involved in the existing arrangements?
Lord Henley
I gave a figure earlier from the impact assessment that the costs on the police were some £10 million. I stick by that. If the noble Lord would like a copy of the impact assessment, I will make sure that he has it.
Lord Campbell-Savours
What is the actual cost of taking DNA from an individual person?
Lord Henley
I have not the first idea of the individual cost but I will take advice and write to the noble Lord.